What to look out for in 2024

Associate, Claire Treacy discusses what’s in store for 2024.

1. Family Friendly Measures

New entitlement for one weeks unpaid carers leave

There is currently no statutory right to carers leave, but for employees who are providing and/or arranging care, the Carers Leave Act 2023 will introduce a new entitlement of one weeks unpaid leave per year, which will be available to eligible employees as a day one right.

Key aspects of this new legislation will be:

• Requests can be for consecutive, or non-consecutive, half days or full days giving employees flexibility about how they take the leave;
• Employees will need to give written notice of their intention to take carers leave and will need to confirm their entitlement to take it;
• Employers can postpone a request if the operation of the business would be unduly interrupted. If this was to happen notice of such postponement must be given before the leave is due to begin, together with an explanation as to why it is necessary to postpone the request; and
• In the same way as other types of family leave, employees will be protected from detriment and dismissal because they take, or seek to take carers leave.

It is anticipated that this legislation will come into force on 6 April 2024 and so businesses should look to update their current family leave policies to reflect this new type of leave.

Redundancy protection extension for pregnancy, maternity, adoption and shared parental leave

The introduction of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will provide further protection during pregnancy or family leave to enhance job security within the context of redundancies.

The law currently allows for employees on maternity leave, shared parental leave or adoption leave to have special protection in a redundancy situation. This special protection means these employees have the right to be offered a suitable alternative vacancy if one is available before being made redundant, thus giving employees on these types of leave priority access to redeployment opportunities compared to other redundant employees.

However, the protection under the new legislation shall be extended to:

• pregnant employees and so as soon as the employer has been notified of the pregnancy the pregnant employee shall benefit from this special protection;
• six months after the mother’s maternity leave ends (the special protection currently ends as soon as the maternity leave ends), as well as six months after an employee’s adoption leave ends in the case of adoption; and
• six months after shared parental leave has ended provided the parent has taken a period of at least 6 consecutive weeks of shared parental leave.

The extension of the protected period to cover pregnancy will apply where the employer is informed of the pregnancy on or after 6 April 2024 and the extension of the protection period will apply to any maternity leave, adoption leave or shared parental leave ending on or after 6 April 2024.

The regulations are currently in draft form and may change, but employers should be mindful of these upcoming changes if they are contemplating redundancies in the new year as this will need to be factored into any redundancy process. Policies relating to redundancy, maternity leave, adoption leave and shared parental leave will also need to be updated to reflect this change.

New flexible working entitlements for employees

The Flexible Working (Amendment) Regulations 2023 has been laid before parliament meaning that there will be changes to the flexible working regime.

The following changes will be contained within the new regulations:

• An entitlement to make two requests in any twelve-month period (currently it is one request);
• Employers will need to communicate a decision within two months (currently it is three months);
• Employees will not have to explain what effect, if any, they think the requested change will have on the business and how it should be dealt with by the business.

It had been indicated by the Government that it will also create a day one right to request flexible working, but at present, this is not explicitly stated within the Bill and would need to be dealt with under separate legislation. The current requirement is that someone needs to have been employed for 26 weeks to make a flexible working request and for now it looks like this will remain the position.

The changes will come into effect for flexible working requests made on or after 6 April 2024. Ahead of these changes those dealing with flexible working requests in your business should familiarise themselves with the changes so that requests are properly dealt with and flexible working policies should be updated to reflect the changes.

2. ‘Rolled up’ holiday pay – a new way of paying holiday

The concept of rolled up holiday pay is not new and is where rather than receiving holiday pay when annual leave is taken, a worker receives enhanced pay on top of their salary to cover their accrued holiday pay.  It is currently unlawful for employers to pay holiday pay in this way. However, for those working irregular hours (e.g. zero hour workers) and part-year workers (e.g. term time workers) this is due to change.

This will come into force for employers with leave years commencing on or after 1 April 2024, meaning that if your holiday year is January to December each year, this will come into force for your business when the leave year on 1 January 2025 starts. Employers will therefore have the choice between paying irregular hours workers and part-year workers their holiday pay when they take holiday or paying their workers for accrued holiday pay each time they are paid their salary. If it’s the latter and a rolled-up holiday approach is adopted, workers must still be permitted to take holiday, but they will not be paid at the time they take it.

Rolled up holiday pay is deemed by many to be a better and less burdensome approach for those working irregular hours and/or only working part of the year, as it avoids employers having to make complicated annual leave calculations.

If your business chooses to adopt rolled up holiday pay, you will need to inform your workers of the decision, and payments will need to be clearly distinguished from the normal working hours on payslips.

3. Fire and re-hire code

Fire and rehire (often known as dismissal and re-engagement) is legally allowed in the UK but carries significant cost risks and wider commercial repercussions if not managed or implemented correctly.

On 24 January 2023, following a consultation, a draft code of practice was published by the Government which followed the publication of ACAS guidance for employers in November 2021. The aim of the draft Government code is to crackdown on controversial dismissal tactics and the mistreatment of employees.

Whilst the Government code is not intended to impose legally binding obligations on employers, it will instead carry more legal weight than the current ACAS guidance and will be considered by Tribunals in relevant claims, which could result in Tribunal awards either being increased or decreased by 25% where there has been an unreasonable failure to comply with the Government code. This award is not currently available based on the current guidance. Notably, the Government code will not substitute the existing legal obligations applying to employers currently in relation to fire and rehire exercises.

The emphasis of the Code reflects the existing best practice relating to collaborative information sharing and meaningful consultations and emphasis that fire and rehire should only be used as a ‘last resort’.

The formal version of the code is expected in Spring 2024 and so once it comes into force businesses will need to consider it should they be planning to dismiss and re-engage.

Link to our previous article on this can be found here.

4. Working Time Regulations

The Government have revisited parts of the legislation on Working Time Regulations (WTR) and made a number of proposals, which have previously been set out by Claire Hollins, Senior Associate in a recent article here.

In summary, employers will still be required to keep records as per the WTR and strictly, speaking, their sense of responsibility remains unchanged. However, the EU case law which increased this burden will be removed. Employers will not be burdened with the cost and responsibility of any increased record keeping arising out of EU case law decisions.

5. Repeal of Covid-19 holiday carry over rules

Emergency legislation was introduced in March 2020 which relaxed the restrictions on carrying over holiday to enable businesses to have more flexibility during the pandemic. From 1 January 2024, the new legislation under the WTR removes these emergency provisions as they are no longer needed. Employees who have untaken carried over holiday due to the pandemic will have up to 31 March 2024 to use the holiday.

6. Change to TUPE consultations

Following a consultation in early 2023, the Government has announced its intention to change the consultation obligations so that there can be a direct consultation with affected staff for businesses with fewer than 50 employees or businesses of any size with fewer than 10 employees transferring. This means that consultations can be conducted with employees directly rather than through representatives. The direct consultation will only apply where there are no existing employee representatives in place.

These reforms are likely to be welcomed by employers as consulting via representatives can be burdensome and time consuming where the number of employees who are transferring is small. These changes will make the process more straightforward, and there will be no need for an election process, together with allowing the consultation process to start much sooner.

Regulations enforcing this have been laid before parliament and are expected to come into force on 1 January 2024.